Harris, Lorenzo v. Hershberger

Filing 3

ORDER denying plaintiff's 2 motion to use release account funds to pay the filing fee. Plaintiff to submit $455 fee or motion for leave to proceed ifp and trust fund account statement. (Fee or Motion and Trust Fund Account Statement due 9/13/2013.) Signed by Magistrate Judge Peter A. Oppeneer on 8/21/2013. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

LORENZO HARRIS,
ORDER

Plaintiff,

13-cv-560-wmc

v.
CORRECTIONAL OFFICER HERSHBERGER,
Defendant.

Plaintiff Lorenzo Harris, a prisoner incarcerated in the Wisconsin Department of
Corrections at the Columbia Correctional Institution, has submitted a proposed civil action
under 42 U.S.C. § 1983. With the exception of habeas corpus proceedings, the fee for civil
actions filed after May 1, 2013 is $400 unless a litigant qualifies as indigent under the
federal in forma pauperis statute, 28 U.S.C. § 1915(a), in which case the fee is $350. Plaintiff
has neither paid the filing fee nor requested leave to proceed in forma pauperis. For this case
to proceed, plaintiff must pay the $400 filing fee or submit a properly supported motion for
leave to proceed in forma pauperis no later than September 13, 2013.
In the event that he requests leave to proceed in forma pauperis, plaintiff is advised that
he must comply with the Prisoner Litigation Reform Act (PLRA), 28 U.S.C. § 1915(b),
which requires indigent inmates to pay by installment the entire filing fee for civil actions
and appeals. The federal in forma pauperis statute does not permit a court to waive a
prisoner’s entire obligation to pay filing fees, but it does allow a qualifying individual to
proceed without prepaying some or all of the filing fee. To determine whether plaintiff
qualifies as indigent, any motion for leave to proceed in forma pauperis must include a

certified copy of his inmate trust fund account statement (or institutional equivalent) for the
six-month period immediately preceding the date of his complaint. 28 U.S.C. § 1915(a)(2).
The court notes that plaintiff has filed a motion to use his inmate release account to
pay the filing fee in this case. (Dkt. # 2). The federal in forma pauperis statute suggests that
prison officials are required to use a prisoner’s release account to satisfy an initial partial
payment if no other funds are available, Carter v. Bennett, 399 F. Supp. 2d 936, 936-37
(W.D. Wis. 2005), and the State of Wisconsin has conceded that the PLRA, 28 U.S.C. §
1915(b)(1), supersedes any restrictions state law imposes on the availability of funds in a
prisoner’s release account. Therefore, if sufficient funds do not exist in plaintiff’s regular
account to pay an initial partial payment, he should be allowed to use his release account to
pay some or all of the assessed amount. As noted previously, however, the filing fee cannot
be determined at this time because plaintiff has not requested leave to proceed as an indigent
litigant or submitted a certified copy of his inmate trust account statement in support of
such a request.

ORDER
IT IS ORDERED that:
1.

No later than September 13, 2013, plaintiff Lorenzo Harris shall pay the $400
filing fee or submit a properly supported motion for leave to proceed in forma
pauperis together with a certified copy of his inmate trust fund account

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statement for the six-month period from the date of the complaint (August 8,
2013 through at least February 8, 2013).
2.

Plaintiff’s motion to use release account funds (dkt. #2) to pay the filing fee
is DENIED as explained in this order.

3.

Plaintiff is advised that, if he fails to comply as directed or show cause
of his failure to do so, the court will assume that he does not wish to
proceed and this case will be dismissed without further notice pursuant
to Fed. R. Civ. P. 41(a).

Entered this 21st day of August, 2013.
BY THE COURT:

/s/
PETER OPPENEER
Magistrate Judge

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